Brent Moresco v The Queen - [2018] VSCA 336

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0218

BRENT MORESCO	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	KAYE, HARGRAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2018
DATE OF JUDGMENT:	11 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 336
JUDGMENT APPEALED FROM:	[2018] VCC 1527 (Judge Ryan)

---

CRIMINAL LAW – Appeal – Sentencing – Parity – Youthful offender – Charge of recklessly cause serious injury – Assaulting and partial blinding of victim – Guilty plea – Sentenced to Youth Justice Centre Order for period of three years – Co-offender sentenced to three years’ imprisonment with non-parole period of 21 months – Co-offender had relevant criminal history whereas applicant did not – Whether disparity as between co-accused – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A P Lewis	James Dowsley & Associates
For the Respondent	Mr C Carr	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA
HARGRAVE JA
WEINBERG JA:

The applicant, together with Bradley Elmore-Jeffries, pleaded guilty in the County Court to one charge of recklessly causing serious injury to Elliot Harvey at Brunswick on 27 May 2017. After pleas were presented in each case, the applicant was sentenced to be detained for three years in a Youth Justice Centre. His co-accused, Elmore-Jeffries, was sentenced to imprisonment for a period of three years, with a non-parole period of 21 months.[1]
[1]DPP v Moresco & Anor [2018] VCC 1527 (‘Reasons’).

The applicant seeks leave to appeal the sentence on the following ground:

Ground 1:The sentence imposed offends the principle of parity in that there is an insufficient disparity between the sentence imposed on Mr Elmore-Jeffries and the sentence imposed on the applicant.

Circumstances of offence

The applicant was born in January 1998, and at the time of the offence he was 19 years of age. Elmore-Jeffries was born in May 1996, and he was almost 21 years of age at the time of the offence. They were both then residing in Wonthaggi in eastern Victoria.

The incident, that was the subject of the charge against each of them, occurred at 1:00 am on 27 May 2017 at Rubix Warehouse Nightclub in Brunswick. Earlier on that evening, the victim, Harvey, who was then 27 years of age, attended those premises in company with his girlfriend. The applicant and Elmore-Jeffries also attended, in company with another friend, Joshua Stubbs. Before they arrived at the nightclub, each of them had been drinking alcohol.

Shortly after their arrival, a verbal dispute took place between the applicant and his colleagues on the one hand, and Harvey on the other , in the car park to the premises, in which the parties exchanged unpleasantries.

The incident, which occurred some hours later, was captured on camera by closed circuit television (CCTV). The judge viewed that footage on a number of occasions, and made findings about the incident, which he set out in his reasons for sentence.[2]
[2]Reasons [8].

Immediately before the incident, Elmore-Jeffries and Stubbs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Brent Moresco v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSCA 336
Decision Date: 11 December 2018

CaseChat Overview and Summary

The appeal in Brent Moresco v The Queen was heard by the Court of Appeal, which involved the applicant, Brent Moresco, and the Crown, represented by The Queen. Moresco was charged with recklessly causing serious injury to another person, a result of an assault that partially blinded the victim. Moresco entered a guilty plea, leading to his sentencing under the Youth Justice Act. He was given a Youth Justice Centre Order for a period of three years. In contrast, his co-offender received a three-year imprisonment sentence, with a non-parole period of 21 months. Moresco argued that there was a significant disparity in sentencing between him and his co-offender, considering he had no prior criminal history while his co-offender did. This disparity was the central issue in the appeal.

The court was tasked with determining whether the sentencing disparity was unjust and warranted a revision. It had to consider the principles of parity in sentencing and the specific circumstances of each offender. The court also had to weigh the seriousness of the offence, the role of each offender, and the impact of their respective criminal histories on the sentencing decision. Furthermore, the court had to consider the appropriate sentencing approach for youthful offenders and whether it was necessary to ensure parity between co-offenders.

The Court of Appeal dismissed the appeal, holding that the disparity in sentencing was not unjust. The court emphasised the importance of considering the individual circumstances of each offender when determining a sentence. It found that the sentencing judge had appropriately taken into account Moresco’s youth and lack of criminal history, which justified a lesser sentence compared to his co-offender. The court also noted that while parity between co-offenders is an important principle, it is not absolute and must be balanced against other sentencing considerations. Ultimately, the court concluded that the sentence imposed on Moresco was appropriate given his unique circumstances.

No further orders were made by the court, and the original sentence of a Youth Justice Centre Order for three years was upheld.

Orders